Allowed

Shri Sanjay S/O Parashuramn Somannache v. Shri Ravichandra Parasharam Goudra Alias Patil

Karnataka HC26 Oct 2023CRL.RP/100237/2021

Case brief

AI extract

What is this about?

The High Court allowed a criminal revision petition challenging conviction under Section 138 N.I. Act. The court held that recording the accused's Section 313 Cr.P.C. statement on the day of appearance and hasty trial deprived the accused of cross-examination rights. The impugned judgments were set aside and matter remanded for fresh trial.

What did the court decide?

Criminal Revision Petition allowed. Impugned judgments set aside. Matter remanded to Trial Court for fresh trial with direction to afford opportunities to both parties to lead evidence. Parties direct

Shri Sanjay S/O Parashuramn Somannache Vs Shri… — Cheque Dishonour | Karnataka HC (2023)

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NC: 2023:KHC-D:12565 CRL.RP No. 100237 of 2021

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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

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DATED THIS THE 26^TH DAY OF OCTOBER, 2023

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BEFORE

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THE HON'BLE MR JUSTICE RAMACHANDRA D. HUDDAR CRIMINAL REVISION PETITION NO. 100237 OF 2021 (397)

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BETWEEN:

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SHRI SANJAY S/O. PARASHURAMN SOMANNACHE AGE: 46 YEARS, OCC: CONTRACTOR, R/O: H. NO.131, JERI GALLI, ANGOL, BELAGAVI-590012.

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…PETITIONER

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(BY SRI. VITTHAL S. TELI, ADVOCATE)

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AND:

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SHRI RAVICHANDRA PARASHARAM GOUDRA @ PATIL AGE: 29 YEARS, OCC: BUSINESS, R/O: GHASTOLLI, TALUKA: KHANAPUR, AT PRESENT GANDHI NAGAR, BELAGAVI-590006.

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…RESPONDENT

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YASHAVANT NARAYANKAR

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Digitally signed by YASHAVANT NARAYANKAR Date: 2023.10.31 10:30:05 +0530

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(BY SRI. RAVICHANDRA P. GOUDRA @ PATIL, ADVOCATE)

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THIS CRIMINAL REVISION PETITION IS FILED UNDER SECTION 397 R/W SECTION 401 OF CR.P.C., SEEKING TO SET ASIDE THE JUDGMENT DATED 28.09.2021 IN CRIMINAL APPEAL NO.266/2019 BY THE XI ADDITIONAL DISTRICT AND SESSIONS JUDGE, BELAGAVI WHEREIN CONFIRMED THE JUDGMENT DATED 09.07.2019 PASSED BY THE VII JMFC, BELAGAVI IN CC NO.609/2018 FOR OFFENCE U/S 138 OF N.I. ACT AND THEREBY ACQUIT THE PETITIONERS/ACCUSED.

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THIS PETITION, COMING ON FOR ADMISSION, THIS DAY, THE COURT MADE THE FOLLOWING:

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2 - NC: 2023:KHC-D:12565 CRL.RP No. 100237 of 2021

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ORDER

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The revision petitioner-accused being aggrieved by the judgment of conviction and sentence passed by the VII-JMFC, Belagavi (hereinafter referred to as “the Trial Court”) in C.C.No.609/2018 dated 09.07.2019 and confirmed by the XI Additional Sessions Judge, Belagavi ( hereinafter referred to as “the First Appellate Court”) in Criminal Appeal No.266/2019 dated 28.09.2021, has filed this revision petition.

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For the sake of convenience, the parties to this petition are referred to as per their rank before the Trial Court.

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That the complainant filed a private complaint under section 200 of the Code of Criminal Procedure 1973, (for short “Cr.P.C.”) before the Trial Court alleging offence under Section 138 of the Negotiable Instruments Act, 1881 (for short “the N.I.Act”) stating that, he has advanced hand loan of Rs.3,00,000/- to the accused. In discharge of the said loan amount, accused issued a cheque dated 12.02.2013 drawn on Karnataka Bank Ltd., Tilakwadi Branch, Belagavi. When the said cheque was presented for encashment, it was dishonoured for want of “sufficient funds” in the account of the accused.

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NC: 2023:KHC-D:12565 CRL.RP No. 100237 of 2021

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Thereafter, the complainant issued a statutory notice as required under section 138 of the N.I.Act on 10.04.2013, which was duly served upon the accused. However, the accused did not pay the said loan amount. Therefore, the complainant was constrained to file a private complaint before the Trial Court.

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Pursuant to summons, accused appeared before the Trial Court. Before the Trial Court, to substantiate the case of the complainant, he himself entered the witness box and got marked Ex.P1 to Ex.P5. The records reveal that no opportunity was given to the accused to cross-examine PW1-complainant. On hearing the arguments, the learned Trial Court found the accused guilty of committing offence punishable under section 138 of the N.I.Act and sentenced him as under:

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“Acting under Section 255(2) of Cr.P.C the accused is hereby convicted for the offence punishable U/Sec.138 of Negotiable Instrument Act, and he is sentenced to pay fine of Rs.3,16,000/-. In default of payment of aforesaid amount of fine, the accused shall undergo simple imprisonment for period of Six months.

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Out of the fine amount of Rs.3,16,000/-, the amount of Rs.3,14,000/- shall be paid to the complainant as

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4 - NC: 2023:KHC-D:12565 CRL.RP No. 100237 of 2021

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compensation U/s. 357 of Cr.P.Cv and Rs.2,000/shall be paid as fine to the state.

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Further, it is made clear that in view of proviso to section 421(1) of Cr.P.C, the accused shall not be absolved of his liability to pay compensation amount of Rs.3,16,000/- awarded U/s . 357 of Cr.P.C, even if he undergoes the default sentence.”

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This judgment of conviction and sentence passed by the Trial Court was challenged by the accused before the XIAdditional Sessions Judge, Belagavi in Criminal Appeal No.266/2019. The First Appellate Court, on hearing the arguments of both the sides, confirmed the judgment of conviction and sentence passed by the Trial Court. This is how the accused-revision petitioner is before this Court by filing this revision petition.

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The respondent herein is duly served with notice. But has remained absent before this Court.

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When the matter is listed for admission, the counsel for petitioner submitted that, this revision may be taken for final disposal. He submits that, illegality has been committed by the Trial Court in passing hasty judgment depriving the rights

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5 - NC: 2023:KHC-D:12565 CRL.RP No. 100237 of 2021

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of the accused to cross-examine PW1. He submits that the grounds urged in the revision petition demonstrate that there was no opportunity given to the accused to cross-examine PW1. He further submits that, on appearance of the accused before the Trial Court on 20.06.2017, he was enlarged on bail. On the same day itself, the case was advanced and plea of the accused was recorded. On the same day itself the evidence was closed and the statement of the accused under Section 313 of Cr.P.C. was also recorded by the Trial Court. Thereafter, the case was posted for marking documents and also for defence evidence. Even no defence evidence is led by the accused.

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In support of his submission, he places reliance on certified copy of the order sheet maintained by the Trial Court in C.C.No.1090/2017. So also, he has produced a copy of the plea recorded by the Trial Court dated 20.06.2017.

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On perusal of the documents, as rightly submitted by the learned counsel for the revision petitioner-accused, on 20.06.2017 accused appeared before the Trial Court against whom NBW was issued. The NBW was recalled and the accused was granted bail on 20.06.2017. The order sheet reveals that,

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NC: 2023:KHC-D:12565 CRL.RP No. 100237 of 2021

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on the same day itself the case was advanced and the substance of accusation was recorded for which the accused pleaded not guilty.

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The learned Magistrate treated the sworn statement of the complainant as evidence of the complainant. The statement of the accused under Section 313 of Cr.P.C., was also recorded on the same day itself. Thereafter, the case was posted for marking the documents. The certified copy of the order sheet reveals that PW1 was recalled and even statement of the accused was further recorded on 19.12.2018 and thereafter the case was posted for arguments and the judgment of conviction and sentence was passed subsequently. Even the First Appellate Court has also not considered all these aspects and has confirmed the judgment of conviction and sentence.

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The procedure being adopted by the Trial Court is unknown to law. The learned counsel for the revision petitioneraccused submits that in similar circumstances, the Co-ordinate Bench of this Court in Criminal Revision Petition

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NC: 2023:KHC-D:12565 CRL.RP No. 100237 of 2021

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No.100217/2021, at paragraph 9 of the judgment has observed as under:

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“9. The Trial Court referred the judgment of Hon'ble Apex Court in Indian Bank Association v. Union Bank of India and others¹ for recording statement under Section 313 of Cr.P.C. on the day of appearance of accused in response to summons. On careful reading of the said judgment of Hon'ble Apex Court, it has nowhere said that the statement of accused under Section 313 of Cr.P.C. has to be recorded on the day of appearance of accused before the Court. The Hon'ble Apex Court has issued directions to expedite the trial of cases under N.I.Act in paragraph 23 of its judgment. The Trial Court is duty bound to follow the mandate of Hon'ble Apex Court in expediting the trial of cases filed under N.I.Act.”

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12. Even on reading Indian Bank Association case

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referred to supra, there is no observation or the law laid down by the Hon’ble Apex Court that the statement of accused under Section 313 of Cr.P.C., has to be recorded on the date of the appearance before the Trial Court. In the said judgment, the Hon’ble Apex Court has issued guidelines to the Trial Courts dealing with N.I.Act cases to expedite the Trial. The Trial Court

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1 (2014) 5 SCC 590

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is duty bound to follow the mandates of the Apex Court in expediting the trial of the cases by following the provisions of N.I.Act. The hasty procedure adopted by the Trial Court is unknown to law. Thereby, it has affected the principles of natural justice. When lis is pending, either civil or criminal, it is the duty of the Court to afford sufficient opportunity to the parties to prove their respective cases. Unless opportunity is given to the parties to the litigation, it cannot be said that justice is being given to the parties to the lis . It is submitted that the accused has got good defence to defend himself. The Trial Court hurriedly passed the judgment of conviction. Therefore, in view of these factual features coupled with nonfollowing of proper procedure by the Trial Court, the impugned judgments are required to be interfered with and are liable to be set aside with a direction to the Trial Court to follow the procedure as contemplated under the provisions of Cr.P.C. and pass judgment on merits by affording opportunities to both the parties to lead their evidence. Resultantly, I pass the following:

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ORDER

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i. The criminal revision petition filed by the petitioner-accused is hereby allowed.

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NC: 2023:KHC-D:12565 CRL.RP No. 100237 of 2021

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ii. The judgment passed by the VII-JMFC, Belagavi in C.C.No.609/2018 dated 09.07.2019 and confirmed XI Additional Sessions Judge, Belagavi in Criminal Appeal No.266/2019 dated 28.09.2021 are hereby set aside.

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iii. The matter is remanded to the court of VIIJMFC, Belagavi for fresh trial in accordance with law.

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iv. Both the parties shall appear before the Trial Court on 23.11.2023.

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v. As the case is of the year 2013, the Trial Court is hereby requested to dispose of the case on merits expeditiously as early as possible by affording opportunities to both the parties to lead their evidence and produce documents, if any.

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vi. Send back the records of the Trial Court and the Appellate Court forthwith with a copy of this order.

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vii. All contentions of the complainant and the accused are kept open.

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YAN, LIST NO.: 1 SL NO.: 14

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Sd/JUDGE

Shri Sanjay S/O Parashuramn Somannache v. Shri Ravichandra Parasharam Goudra Alias Patil

Case brief

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Shri Sanjay S/O Parashuramn Somannache v. Shri Ravichandra Parasharam Goudra Alias Patil

Case brief

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